HKSAR v. Ally Ayubu Jumbe

HCMA 553/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 553 OF 2016

(ON APPEAL FROM ESCC NO 2035 OF 2016)

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Before: Deputy High Court Judge Woodcock in Court

Date of Hearing: 8 March 2017

Date of Judgment: 11 April 2017

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J U D G M E N T

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Introduction

1.The appellant was charged and convicted after trial of one count of Assault occasioning actual bodily harm contrary to common law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212. He was sentenced to 28 days’ imprisonment.  He now appeals against his conviction only. 

Issues at Trial

2.The parties were unknown to each other.  The appellant was convicted of hitting PW1.  He then fled the scene but was some weeks later recognized by the victim’s friend PW2 who called the police.  In a subsequent identification parade PW1 positively identified the appellant as her attacker.  Identification of the appellant and credibility of the witnesses were the issues at trial.  It was argued the identification evidence was unsafe and the prosecution witnesses were unreliable and mistaken.

The Prosecution Case

3.The respondent set out the prosecution’s case succinctly in submissions and I quote directly from it:

“2. In the small hours on 7 April 2016, Miss WU Ping (‘PW1’) and Miss LI Ping (‘PW2’) and their friends patronized a bar in Jaffe Road, Wanchai. PW1 met a German male called Simon outside the bar. A black male approached Simon and offered to sell something to him. At that time PW1 was about 1 metre away from the black male and was able to observe him for about 10 odd minutes. As Simon was very drunk, PW1 accompanied Simon to the doorway of the hotel where he stayed. The black male followed them from the bar to the hotel, and PW1 was able to see the face of the black male during the 2 to 3 minutes long journey. The black male asked Simon to go to the bank to get money. Upon reaching the doorway of the hotel, the black male blamed PW1 for stopping him doing business with Simon and then hit PW1. The black male then fled on a taxi. PW1 reported the case to the police and complained to PW2 that she had been assaulted by the black male. During her encounter with the black male, she was able to observe his facial appearance under sufficient lighting.

3. PW2 did not witness the assault by the black male on PW1, but she had seen a black male approach Simon and later followed Simon and PW1 when they left the bar for the hotel. Later when she called PW1, PW1 complained to her that she had been assaulted by the black male.

4. On 5 May 2016, PW2 saw the Appellant in Jaffe Road and Fenwick Street in Wanchai. She immediately called the Police and identified to the police that the Appellant was the black male. The Appellant was arrested.

5. At an identification parade conducted by Chief Inspector SIU Kwok-ming (‘PW3’) on 25 May 2016, PW1 positively identified the Appellant as the black male who had assaulted her on 7 April 2016. The identification parade was video-taped and admitted into evidence by way of admitted facts.

6. Pieces of CCTV footage which captured PW1 and Simon on their way to the hotel and PW1 giving chase to the black male were admitted into evidence by way of admitted facts.  Medical reports of PW1 were also admitted into evidence by way of admitted facts.”

The Defence Case

4.The defence case was that the appellant was not present in Wanchai that material night and it was not him who hit PW1.  In fact, the first time he ever went to Wanchai District was on the night of his arrest when PW2 saw him and called the police.  On that night, 5 May 2016, he went to Wanchai to celebrate a friend’s birthday. 

5.He recalled clearly that in the early hours of 7 April 2016, the date of the offence, he was asleep at home suffering from a toothache.  PW1 and PW2 wrongly identified him.

6.The subsequent identification parade arranged was not fairly conducted because he looked very different to the actors in the lineup. 

7.It was suggested the evidence of PW1 and PW2 should have been treated with great caution due to racial bias and stereotyping as well as possible intoxication affecting them and their powers of observation. 

Admitted Facts

8.It was admitted PW1 attended the hospital on the 7 April 2016 and suffered facial injuries.  Medical reports were submitted, P1 and P2.  Photographs of her injures were taken and admitted, P3.  There were two separate CCTV footage produced from two separate locations produced as P4 and P5. 

9.It was also admitted PW1 positively identified the appellant during an identification parade on the 25 May 2016.  The Parade book was P6 and the video of it, P7.  It was admitted the appellant denied the offence under caution and nothing suspicious was found during a home search.

The Magistrate’s Findings

10.The issues here relate to the credibility of the witnesses and the weight of the evidence; both being questions of fact to be determined by the magistrate.  This appeal is an appeal by way of rehearing on the papers.  The principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 by McWalters J (as he then was).  An appellate court will not depart from a magistrate’s finding as to the credibility of a witness unless it is satisfied that the finding is “plainly wrong”.

11.The magistrate had the benefit of observing the demeanor of the witnesses giving evidence and accepted their evidence.  He said they were not evasive nor shaken under cross-examination.  He accepted PW1’s evidence in its entirety.  He believed PW2 as well and found her credible but did have some reservations to certain aspects of her evidence which he explained. 

12.He rejected the appellant’s evidence that he had never been to Wanchai before the date of his arrest and it was not him depicted in CCTV footage.  The attacker was described or shown in CCTV footage to have a distinctive hairstyle; his hair was tied into a lot of small bunches tied with rubber bands. The appellant gave evidence that he had “never tied his hair into small bunches in his life”.  The magistrate goes on to say:

“When the prosecutor showed him his Form 8 Recognizance, a personal identity document, a photo showed that his hair was tied into small bunches. He admitted that the photo depicted him. It was taken 9 months ago. He said that his hair as appeared in the photo was not tied with rubber bands. The court considered that such a reply was in fact contradicting his earlier answer. His answer was also evasive because the issue of the question was the small bunches, whether it was tied with rubber bands or not was irrelevant”. (Para 21 of the Statement of Findings.)

13.The magistrate also found the appellant’s evidence of his whereabouts on the material night unbelievable.  His timings as to when he was asleep and when he woke up (the point being made was that he was asleep at home at 5am on 7 April 2016) differed between what he told the police and what he said in the witness box.  The magistrate suspected he concocted this part of his evidence.

14.The appellant’s video recorded interview made under caution was apparently read into the record and exhibited as P9.  It being entirely exculpatory it cannot have been exhibited for the purposes of proving the facts stated therein.  The magistrate said he disbelieved the oral evidence of the appellant and that the interview of the appellant was not accepted as evidence. I am sure he meant not to prove the truth of the facts therein. 

15.The magistrate, on other hand, believed the evidence of the victim and the material parts of PW2’s evidence, her friend.  PW1 positively identified the appellant at a parade some 7 weeks after she was assaulted.  The evidence accepted by the magistrate and supported by the CCTV footage is that on that material morning she saw the appellant for about 15 minutes in total.  That included several face-to-face conversations.  It included observing him in good light and in close proximity.  The magistrate was satisfied the identification evidence was good and reliable.  There was no evidence from the CCTV footage she was drunk and her faculties impaired by alcohol.  The magistrate believed her evidence she was sober. 

16.PW2 saw the appellant following PW1 when she left the bar and then she received a call from PW1 not long after to say she had been hit by him.  She then recognized him when she saw him again on 5 May 2016 in Wanchai.  The magistrate only placed weight on her evidence as to why she recognized him and that she pointed out the appellant to the police.  He did not specify what part of her evidence he did not rely on but clearly he did take such matters into account and find her reliable nonetheless.  He did disregard her assumptions relating to the appellant’s reasons for being in Wanchai and why he followed PW1 and her drunk friend. 

17.PW3, Chief Inspector Siu was called when the fairness of the identification parade was challenged by the defence.  The magistrate found after hearing his evidence, seeing the Parade book, P6 and watching the video of the parade, P7, the parade was conducted properly, fairly and not to the prejudice of the appellant. 

Grounds of Appeal

18.The appellant’s grounds of appeal can be summarized as follows: Ground 1, the evidence was not sufficient to convict the appellant; and Ground 2, the identification parade was not fairly conducted and prejudicial to the appellant. It should not have been admitted.  The appellant submitted he looked younger and was shorter than all the actors and requesting everyone sit down during the parade did not rectify those visual differences. 

19.The appellant added he was confused how PW2 could identify him and call the police when she wasn’t there when PW1 was assaulted.  He questioned if she only identified him based on a description given to her by the victim, her friend. 

Considerations of the Grounds and Submissions.

20.The first ground was that there was not sufficient evidence to convict the appellant.  The facts accepted by the magistrate was that the victim and her friend recognized the appellant as the assailant and the man who followed the victim respectively.  If that is accepted, then there is sufficient evidence with the documentary evidence and admitted facts to prove the elements of the offence.  The second ground is essentially an extension of the first ground.  If the identification evidence is not reliable and safe then the conviction is unsafe.

21.I repeat, the magistrate had the benefit and advantage of having seen the witnesses in court as well as the video tape of the identification parade. He was satisfied the parade was fairly conducted.  The appellant is not a tall man. I can see that the actors and the appellant sat down on chairs at the request of the appellant so any disparity in height was not obvious.  The positions of actors were moved around to address this issue.  PW1 then made a positive identification.  The magistrate’s finding was that the interests of the appellant were protected and it was a fair and proper parade. 

22.In any event, PW1’s evidence of identification did not involve a fleeting glance of the appellant.  They were not known to each other but the victim did have ample time and opportunity to see the appellant face to face in good lighting and without obstruction.  The magistrate found that evidence convincing and reliable.  I can only rely on the transcript and the exhibits but on assessment of the papers I am sure that finding was reasonable.  The grounds of appeal fail.  In essence, the appellant attempted to re-argue the same points made during the trial which were carefully considered and rejected.

Conclusion

23.Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.  In the event the findings of fact made by that magistrate are unreasonable or illogical or contain inherent improbabilities then the conviction will be unsafe.  The same applies if that magistrate when dealing with the evidence erred in his reference of material facts or omitted or failed to consider material facts then again the conviction would be unsafe. 

24.Here I do not find the findings unreasonable, illogical or inherently improbable.  The magistrate did not fail to consider any material fact or misunderstand or misquote any material fact.  I, having considered the papers before me, also do not find any reason not to believe the evidence of the victim, PW1.  I am satisfied the magistrate fairly and properly considered the issues raised by the appellant and was not plainly wrong in his finding PW1 credible.

25.I find no basis to interfere with the magistrate’s findings of fact and his assessment of the credibility of the witnesses.  The evidence proved beyond reasonable doubt the appellant assaulted PW1 causing her actual bodily harm.  Therefore, the appeal is dismissed.

Ms Clara Ma Senior Public Prosecutor, of the Department of Justice, for the respondent

The appellant appeared in person